Baugher v. Wilkins

Per Eccleston, J. I concur in the opinion of the court, as delivered by the Chief Justice, except that I do not consider it necessary to express any opinion on the question as to whether, if it had been established that, the appellees were merely executors of the will of Joseph Wilkins, and had done the injury complained of, under- the pleadings in the cause, they would have been liable in their individual capacities. Le Grand, C. J., delivered the opinion of this court: This is an action on the case instituted by the appellants against the appellees and John Glenn. The death of Glenn having been suggested before the trial of the cause, the proceedings were slayed as against him and prosecuted against the others. The declaration against all the original defendants was as executors, and contained four counts.

The substance of these, it is agreed, is correctly stated by the appellees in their brief. {Ante., 35, 36.) The appellants asked four instructions,- all of which were refused; and the appellees for five instructions, the first of which was admitted to be correct, the second, third- and fourth were granted, and the fifth rejected by the court. The questions presented by the rejection of the appellants’ prayers, and the granting of the second, third and fourth prayers of the appellees, we are now to decide upon the evidence and pleadings in the cause. At the trial evidence was given that the appellants, together with their deceased partner, Allwine, were the tenants and occupants, as assignees of a parol lease from the testator of the appellees, of warehouse, No. 285, Baltimore street, in the city of Baltimore; and that whilst the tenancy existed, Israel Griffith was the owner of a lot and warehouse adjoining, there being, to a limited extent, a party-wall, common to both warehouses. On the other hand, evidence was given that the wall which was taken down was wholly on the lot of Griffith. ⁴³ The responsibility of tire appellees is derived principally from a paper signed and sealed by the executors of Joseph Wilkins, deceased, of date the 29th day of April 1851.

This paper, after reciting that Israel Griffith was the owner of a lot on the south-east corner of Baltimore and Sharp streets, adjoining a lot of ground belonging to the estate of Joseph Wilkins, deceased, and that there was, to a certain limited extent, between the two lots, and equally on both, a party-wall, gives “permission and privilege unto the said Israel Griffith, his heirs, executors, administrators or assigns, to have the said party-wall raised to the height of four stories, and to have the same continued in a straight line with the present division wall to within three feet of the alley in the rear.” This permission and privilege was given on the following conditions: 1st. That Griffith should furnish the materials and have the work done without any charge to the executors or the estate of Joseph Wilkins. 2nd. That the trustees and executors, or heirs of Joseph Wilkins, or their successors or assigns, should have the privilege of using and building into the party-wall, throughout its extent in length and height, and to the depth of four and a half inches into its breadth. 3rd. That Griffith should have the house standing on Wilkins’ lot, boarded up in such place or places as may be left open by the operations necessary to raise and lengthen the party-wall.

There was a plat of the wall and premises given in evidence by the plaintiffs, on which was designated by the letters C. D, E., that part of the division wall claimed by the plaintiffs to have been partly upon the lot occupied by them as tenants. It was proven that the original improvement did not contemplate the tearing down of this part of the wall, but only to use it in the proposed improvements; that after the main warehouse of Griffith had been taken down, and the excavations made for the cellar, he tore down a portion of the wall C. D. E., which exposed the loft of the back building of the warehouse occupied by Baugher, Fisher & Co., and finding this part of the wall had been built at different times, and was weak and defective, he determined that ⁴⁴ it. was necessary to tear it down also, and on the last of April, or the first of May, began to take it down, and in doing so opened ami exposed the back-building of the warehouse of Baugher, Fisher & Co.; that the space so opened was boarded up with boards, some of which were lapped and some placed horizontally, and that it remained in this condition for some weeks. It was also proven by the plaintiffs, by a competent witness, that their goods were protected only by a plank partition, and that they were very much confused and piled up, and suffered a great deal from lime and dust; that they could not have been sold within five per cent, of their original